Sherman v. William M. Ryan & Sons, Inc.

• Decision Date: 01 May 1940
• Citation: 13 A.2d 134,126 Conn. 574
• Parties: SHERMAN v. WILLIAM M. RYAN & SONS, Inc., et al.
• Court: Connecticut Supreme Court

13 A.2d 134

126 Conn. 574

SHERMAN v. WILLIAM M. RYAN & SONS, Inc., et al.

Supreme Court of Errors of Connecticut.

May 1, 1940

Appeal from Superior Court, New London County; Kenneth Wynne, Judge.

Action by Rose Sherman, administratrix of the estate of Arthur S Sherman, deceased, against William M. Ryan & Sons, Inc., and another for death of plaintiff's intestate alleged to have been caused by negligent operation of defendants' automobile. Verdict and judgment for plaintiff, and defendants appeal.

Charles V. James and Arther M. Brown, both of Norwich, for appellants-defendants.

George C. Morgan, of New London, and Harry Schwartz, of Norwich, for appellee-plaintiff

Argued before MALTBIE, C.J., and HINMAN, BROWN, AVERY, and JENNINGS JJ.

AVERY Judge.

This action was brought by the plaintiff as administratrix of the estate of Arthur Sherman to recover damages for his death on January 19, 1938, which, as the plaintiff claimed, was caused by the negligent operation of an automobile. The case was tried to the jury and a verdict returned in favor of the plaintiff from which the defendants have appealed, claiming errors in the charge of the court, in the proceedings occurring in the examination of the proposed jurymen upon the voir dire preceding the impaneling of the jury, and also in the refusal of the trial court to grant their motion to set aside the verdict.

On the trial the plaintiff offered evidence and claimed to have proved the following facts: At about 8:30 o'clock in the morning of January 19, 1938, the plaintiff's intestate Arthur Sherman, a boy nine years of age, was proceeding northerly on Summit Street in Norwich on his way to school. The day was very cold and the street was covered with snow which had been plowed from the center, forming a traveled space about sixteen feet wide, which had been worn smooth and slippery by traffic. At the place in question, Summit Street runs north and south with a rising grade to the north, and the decedent was walking upon the westerly side of the traveled way, dragging his sled, having a cap pulled over his face. Two other children were preceding him, each dragging a sled. An automobile, traveling southerly, owned by the named defendant and driven by its agent, approached the point where the three boys were walking. The day was clear and the vision of the operator was unobstructed for many hundred feet. As the automobile approached, the operator was first traveling on the westerly side of the street, he then veered off to the middle, traveling at a rate of about twenty to twenty-five miles per hour until within a distance of two hundred to two hundred and fifty feet northerly of the first of the three boys, when he continued to veer the car toward the easterly side of the traveled portion of the street and proceeded, continuing to veer to his left without slackening speed and on his left side of the highway, until about opposite the plaintiff's decedent, when one of the boys shouted, ‘ Look out.’ The decedent then either walked rapidly or ran toward the middle of the highway, and, because of the failure of the operator of the automobile either to blow his horn or stop, the decedent was struck with the right side of the automobile, fracturing his skull and causing his death. At the moment of impact, the left front and rear wheels of the automobile were in the packed snow on the easterly side of the traveled way. The facts claimed to have been proved by the defendants were substantially the same as those claimed by the plaintiff, except that the defendants claimed to have proved that when the automobile came within a distance of two hundred or two hundred and fifty feet northerly of the first of the boys the operator blew the horn and slackened speed; and when the front end of the automobile was at a distance of about ten feet from the decedent the latter suddenly ran or walked rapidly from the westerly side of the highway, where he had been previously walking, and proceeded in a northeasterly direction toward the path of the automobile and against its right-hand side, so that the left side of his head came into collision with the door on the right side of the automobile.

In its charge to the jury, the trial court gave them elaborate instructions in regard to the doctrine of the last clear chance and left it to the jury to determine whether the doctrine applied to the facts in evidence. There was nothing in the claims of the parties as to the facts proved which laid any foundation for the application of this doctrine. As far as the automobile was concerned, the deceased was in a position of safety while walking on the west side of the roadway. He...